‘Had the clerk issued marriage licenses to 12-year-olds…’

We’ve kept an eye on developments near Philadelphia, where county clerk D. Bruce Hanes recently announced he’s granting marriage license to couples, gay or straight, who wish to get married in Montgomery County. Hanes insisted his policy is consistent with the Supreme Court ruling that struck down the Defense of Marriage Act, and in line with the judgment of the state Attorney General, who believes the state’s law discrimination against gay couples is unconstitutional.

Pennsylvania Gov. Tom Corbett (R), not surprisingly, strongly disagrees, and his administration has filed suit to stop Hanes and halt the same-sex marriages. Yesterday, we got a closer look at the legal argument against equal treatment.

The Corbett administration said its lawsuit seeking to halt same-sex marriage licenses in Montgomery County “would have no direct effect” on the couples who have already received them.

In a brief Wednesday, state attorneys said those marriage licenses were never valid, and compared gay and lesbian couples to “12-year-olds” who are also barred from marrying under state law.

That’s not hyperbole. As the Philadelphia Inquirer’s report noted, the brief filed by the Corbett administration asks, “Had the clerk issued marriage licenses to 12-year-olds in violation of state law, would anyone seriously contend that each 12-year-old … is entitled to a hearing on the validity of his ‘license’?”

So, as far as Pennsylvania’s Republican governor is concerned, if two consenting adults fall in love, want to get married, and are given a marriage license from their local town clerk, this is effectively the same thing as extending a marriage license to children – if the two consenting adults are of the same gender, that is.

If Corbett and his attorneys want to argue that Hanes is bound by state statute, and that Hanes’ policy in Montgomery County represents a form of civil disobedience, they may have a credible case to make.

But comparing consenting adults to 12-year-olds because Corbett disapproves of their sexual orientation, and state law prefers discrimination to equality, is unlikely to win the day.

Note, on the advice of counsel, Hanes hasn’t said much to the media, but he’ll appear in court to help present a defense next week.